Suit to set aside void and in operative document.

This is an appeal by the plaintiff against the judgment and decree in O.S. No. 2 of 1947 on the file of the Court of the Subordinate Judge, Chicacole. The properties which are comprised in this suit belonged to one Vaddi Varahalu, the mother of the plaintiff, as her stridhana and on the death of Vaddi Varahalu about the year 1914 the plaintiff became entitled to them as her stridhanarrn heir. She was then a minor aged about 8 years. It is stated in the plaint that as her father was a man of weak intellect, the first defendant and his brother Kamanna who are her maternal uncles took possession of her properties and entered into the management thereof on her behalf. The plaintiff was subsequently married to the first, defendant. On 16th August, 1925, she executed a deed of settlement Exhibit B-3 whereby she transferred all the suit properties to the first defendant and his brother Kamanna by way of gift. It is this deed that is the subject-matter of attack by the plaintiff in this action. The plaintiff alleges that the first defendant and his brother represented to her that the deed was a general power of attorney authorising them to manage the estate, that she did not read it nor was it read to her and that she executed it in the thought and belief that it was only a power-of-attorney. She goes on to state that she lived with her husband till 1939, that in that year he drove her and her children out of the house and that she became aware of the fraud practised on her only on 29th August, 1944. In paragraph 10 of the plaint it is stated that the settlement deed, dated 16th August, 1925, was vitiated by fraud and misrepresentation of the first respondent and his brother and as such it confers no title on them to the plaint properties" and that the suit is laid for recovery of possession with mesne profits. Conformably to these allegations,, the plaintiff prays for a declaration that the settlement deed, dated 16th August, 1925, is vitiated by fraud and undue influence and misrepresentation and that it confers no title on the respondents; for an order that the suit settlement deed be set aside and for a decree for possession and mesne profits. The second defendant is the widow of Kamanna who is the brother of the first defendant and one of the donees under Exhibit B-3. Both the defendants contest the suit on the merits and they also plead that it is barred by limitation. On these pleadings, the following issues were framed:

1. Whether the settlement deed, dated 16th August, 1925, was got executed by the plaintiff by the exercise of fraud, undue influence and misrepresentation?

2. Whether the plaintiff has been in possession of the suit properties within 12 years prior to suit?

3. Whether the suit is in time?

4. To what mesne profits, past and future, is the plaintiff entitled, if any?

5. What relief?

At the hearing of the suit issue No. 3 was taken up first for trial. The notices that passed between the parties in 1944 were marked and arguments were addressed’ on the question of limitation. The learned Subordinate Judge held that the suit was governed by Article 91 of the Limitation Act and that as the plaintiff had admitted in her notice dated 10th August, 1944, that she had knowledge of the fraud iri 1940, the suit which was instituted on 25th April, 1946, was barred by limitation. On this finding, he dismissed the suit in limine. Against this decision the plaintiff prefers this appeal.

The only point for determination in this appeal is whether the suit is barred’ by limitation under Article 91 of the Indian Limitation Act. The answer to this question depends on the application of two principles both well settled, that Article 91 does not apply when the instrument sought to be cancelled is void and inoperative and that when a person executes a deed of one character under a misrepresentation that it is of a different character, it is void.

Article 91 of the Limitation Act provides for a period of three years for a s